The Judiciary and the Legislature — I

THE THREE major pillars which support the constitutional cathedral are the Legislature, the Judiciary and the Executive. Constitutional comity expects institutional harmony, so that the great vision of the Founding Fathers about a creative social order may fulfil itself. However high the expectation, confrontations have arisen leading to extraordinary occasions of head-on collisions. One such unhappy instance is the case of Keshav Singh (under Article 143 of the Constitution of India).

The Legislature and the Judiciary are paramount institutions enjoying sovereign powers to the extent assigned to them and enshrined under the Constitution.

Specific provisions have been made in our Founding Deed vesting authority in each and so long as they function within their bounds a happy modus vivendi prevails. But occasions may arise when operational friction and perception of jurisdiction may bring the Court and the House into a scenario of constitutional combat. Therefore, the boundaries of operation of the Judiciary and the Legislature must be clearly drawn so that the rights of the citizen are not drowned in confusion.

The Judiciary is charged with the solemn duty of upholding the fundamental rights of and forbidding legal injury to citizens. In this sphere, the robed independence of the Court is a high guarantee under the Constitution.

None whose rights are in jeopardy or violated is without remedy so long as Articles 32, 136, 142, 226 and 227 reign supreme as inscribed in Part III and Chapter V, Part VI.

The power to declare the law is finally vested in the Supreme Court under Article 141. Of course, the High Courts, while granting relief under Article 226, do lay down the law subject to the overriding jurisdiction of the Supreme Court. In short, any aggrieved citizen can seek relief, when his rights are infringed, from the High Court or the Supreme Court. They are the haven of human rights under the Constitution. The independence of the Judiciary is essential for the discharge of its plenary obligations to defend rights and to prevent wrongs. Indeed, judicial power is the central source of remedial armour to guard human rights such as are granted by the corpus juris of the country.

We have a Government of laws and the legislatures make the law. They are also a grand inquest of the nation and have vast powers of discussion, debate and law-making. Inevitably, the autonomy needed for the proper exercise of parliamentary power makes it appropriate for these institutions to enjoy the authority required to exercise their constitutional obligations.

Inevitably, the Constitution vests in the Legislature powers, privileges, freedoms and immunities that are necessary functional attributes of the Houses and of the members and committees of such legislatures. The nidus of the privileges can be located in Article 194 read with the restrictions in Article 211.

To preserve the dignity of the Judiciary and the majesty of its power there is a specific provision that no discussion shall take place in the legislature of a State with respect to the conduct of any judge of the higher court in the discharge of his duties. To protect the Legislature from judicial interference, there is Article 212 which inhibits judicial investigation into proceedings of the Legislature with a clear stipulation that no officer or member of the Legislature in the conduct of his business in the House shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. Therefore, under Article 194 (2) no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the House.

Curiously enough, the powers, privileges and immunities of the House and the members have not yet been codified and are as a fact what prevailed in the House of Commons when the Indian Constitution was framed. Verbal attempts to get out of this colonial vestige have been made, but the fact remains that we have to look to Westminster even today for the rights of the Indian legislature and legislator.

There are occasions of institutional aberrations when one or another of the instrumentalities runs berserk. Therefore we must be clear about the fundamentals.

There was a case where the Speaker of the Uttar Pradesh Assembly issued arrest warrants against judges of the Allahabad High Court. Let me quote the late Nani Palkhivala who sums up tersely the introduction to the story: "What had never happened in England since 1689, occurred in India in 1964. One Keshav Singh was committed and imprisoned by the U.P. Legislative Assembly (we shall call it "the House") for contempt. He moved a habeas corpus petition through an advocate before two judges of the Allahabad High Court who admitted the petition and granted him interim bail. The House could have filed a return showing how the detention of Keshav Singh was legal and within the powers of the House, and the petition would have been heard and disposed of on merits at a later date. However, immediately after the petition was presented, the House took the view that the citizen who moved the High Court, and the lawyer who presented his habeas corpus petition and the judges who heard it were all guilty of contempt. The House resolved that the High Court judges and the advocate should be brought in custody before the House. Thereupon the two judges and the advocate presented petitions, which were admitted by the full Bench of 28 judges of the Allahabad High Court, wherein they challenged the validity of the resolution of the House against them. Under a later resolution, the House withdrew the warrants for the arrest of the two judges and the advocate, but the judges and the advocate were still required to appear before the House and offer their explanations as to why the House should not proceed against them for contempt.

"Fortunately, the President made a timely reference to the Supreme Court under Article 143(1) of the Constitution (Special Reference No.1 of 1964) asking the Supreme Court's opinion on five questions. The essence of the five questions may be summed up in just one issue which constituted the jugular vein of the whole Reference: "If a citizen is committed for contempt by the Legislature, has he the right to seek redress in a Court of Law, or do the Judges who hear his petition and the advocate who presents it commit contempt of the Legislature". (Privilege of Legislatures-Supreme Court's Opinion in President's reference, 1964, Pages 2 & 3)

It may be noted that between the Commons and the judges there had been a battle of warrants against each other bearing on the contempt of Parliament.

This "deplorable irresponsibility" displayed by the Commons in 1689 was never repeated and no judge has ever been called upon to answer a charge in England ever since, although the British judges have heard and decided petitions by citizens committed for contempt by the Commons.

What we need is statesmanship on the part of judges and parliamentarians where a larger vision of the comity of institutions will obviate stultifying collisions. The Supreme Court, with that great statesman judge Gajendragatkar presiding, cleared the law of possible confusion and murky ambivalence and pettifogging obfuscation.

We must remember that India has never suffered the stresses and tensions which were the result of historical causes and rival claims of the Crown, the Courts, the Commons and the Lords. That has no relevance under our Constitution.

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